Adverse Possession

Let us assume a hypothetical situation in which you have been
maintaining property which meets the criteria for adverse possession as
given according the following statute:
http://www.oregonlaws.org/ors/105.620
Let us further assume that this is part of an urban residential
property, and which consists of about 1000 square feet, along two
property lines, formed by old fences a half-dozen feet from your plotted
property line.
Assume you have, for 20 years, maintained this property by mowing it as
needed whenever you mowed your real propety. Additionally, assume that
the neighbors on both affected sides are unaware of the discrepency, and
consider the fenceline to be the actual property line.
Assuming you just discovered this situation at a time in which you are
planning to build your own perimeter fence, would you, A.) build your
fence one the line of the existing fence, thus taking advantage of the
adverse possession to which you are legally entitled, or B.) build your
fence along your plotted property line?
Personally, I would choose option B, to both avoid future conflicts with
future property owners, as well as to not be a dick about it.
What are your thoughts?
Jon

I'd talk to the neighbors. Not seeing the property, you may actually
cause some problems if you put the fence on your line. Do the other
property owners have easy access to the land in question? Will you
create an inaccessible no-mans-land that is not easily mowed? Do the
neighbors incur some expense to move their fences?
They may just agree to leave things as they are if the land is of
little use to them and not contest anything. In any case, you may
open up some expensive legal situations even if the law is on your
side. All you need is the wrong judge.

The existing fences can be assumed to be either partial (dilapidated)
fences with multiple points access through the fenceline, or low (three
foot high) fencing. As such, the "no-mans-land" would be accessible by
them.

What Jon Danniken is saying MIGHT be true, depending on where you live.
Both Canada and the USA inherited our system of laws from Britain, and
600 years ago in Britain, forgery was the quickest, easiest way to get
rich. With no public education administered by the government and paid
for by taxes, few people could read or write. And, that was convenient
if you wanted to get rich quick by challengine a will. When rich old
Lord Pompous dies, and his will leaves his estate of Blackacres to his
son, you show up with a forged will claiming that Lord Pompous had a
fling with your mother, and you are Lord Pompous' illegitimate child.
And to prove, you show a will signed by Lord Pompous with his customary
"X" granting half of Blackacres to you, and the other half to his know
son.
Since few people could read or write at the time, it was customary for
the wealthy to employ the services of a "notary public" who could read
and write and would transcribe a person's intentions to paper and vouch
for the credibility of that paper. The problem is that notary publics
could be bribed, and so you could often have a half a dozen different
wills popping up, each as legitimate on their surface as the others.
The doctrine of Adverse Possession arose as a means of dealing with the
problem of widespread forgery. It allowed judges to recognize the
claims of people well known in the community for generations to succeed
against the apparantly superior claims of total strangers who showed up
after a death claiming to be illegitimate children of the deceased.
In Britain and France, up until about 1850, the rights to property were
recorded in something called a "land registry" where every time a
property was sold or divided amongst heirs or whatever, the bill of sale
or will would be registered. So, if you wanted to buy a piece of land,
you had to search through all of the bills of sales and wills registered
in that land registry for, in some cases, centuries, to prove that the
seller of the land really owns what they're wanting to sell. Since that
time, however, there have been laws that require that the seller only
prove his claim of ownership over the past 40 years.
The problem with that system is that the bills of sale and wills would
be damaged by continuous handling, and at a time before photocopiers,
often only the owner and the land registry would have originals of the
bill of sale or will by which the owner could defend his claim to his
land. And, in a fire like the London fire of 1666, which 2/3 of the
city went up in flames, then not only did the land registry go up in
flames, your copy did too. So, not only did you lose your house because
insurance didn't exist back then, you also lost the ability to prove you
owned the land you used to live on.
So, in the mid-1850's an Australian by the name of Torres applied the
same system that Australia used to register the ownership of ships to
land sales and the inheritances of estates. In Torres' system, any time
a buyer and a seller agree on the sale of a piece of land, the buyer
applies to the "Land Titles Office" to register the sale. The Land
Titles Office, which is part of the government, reviews the ownership
history of the land to ensure the seller owns it and that there are no
leans or other encumbrances on that land. If there aren't any, the land
titles office then charges the buyer a fee to register his title to the
land. And, with the adoption of that system throughout most of Canada
and the USA, most jurisdictions have passed legislation that provides
that the title of the registered owner CANNOT be extinguished by adverse
possession.
This is a much better system because if the owner of a parcel of land is
ever sued, a judge can give the successful plaintiff the right to
register a lien against that land at the land titles office. So, if the
owner every tries to sell it, the lien holder is payed first out of the
sale of the land. Similarily, if a landowner ever goes bankrupt, then
his creditors can force the sale at auction of any land he owns to
recover their losses. And, since the civil servants working in the land
titles office would have no idea if a squatter had been living on that
land for the past 25 years, the title registered at the land titles
office effectively prevents that squatter from claiming that he now owns
the land cuz of adverse possession.
So, if you build your fence where the old fence was, you do so at your
own risk. That's cuz if your state or province uses the Land Titles
system as opposed to the older Land Registry system, Adverse Possession
doesn't apply, and if and when the mistake is discovered, your new
neighbors can have you tear down the part of your fence that's on their
land.
So, if you live in the older populated parts of US or Canada, like
Boston, Philadelphia, New York, Quebec City or Halifax, there's a good
chance your city or province still uses the old land registry system.
But, if it's the newer land titles system, your title to the land is
guaranteed by the city, state or province, and cannot be extinguished by
Adverse Possession.
PS:
I'm no lawyer, but I read a text called:
The Law and Business Administration in Canada
Third Edition
By J. E. Smythe and D. A. Soberman
Published by Prentice Hall of Canada
every bit of 25 years ago when I first bought my apartment block, and I
still have that book and re-read the part on Adverse Possession and how
recording ownership of land has changed over the centuries.

without reading the link above, I believe that not only do you have to
have had "possession" (and I doubt that mowing it would qualify) and the
original owners need to have been aware of the possession
and then there is the issue of property taxes: claiming the property,
after paying legal fees would undoubtedly put you at liability for back
taxes

I don't believe that is correct. Every statue I've seen on this,
including the one presented here, doesn't say the owner needs to have
been aware of the adverse possession. Only that the one doing the
adverse possession do it openly, so any reasonable person could see
it. The typical case example is someone moving into an
abandoned property and living there for the required period.

It's not stated, but it's a reasonable assumption the real
owner of the property has been paying the taxes, otherwise it
would have gone up for tax sale. In most of the AP statutes I've
seen, for AP to work, it has required that the AP pay the taxes
on the property for the required period as well. That seems
reasonable, as it shows they are treating the property in
question as their own. That might be implied in some of the
verbage of the Oregon stature too, ie the "openly" part. It
could be argued that by not paying the taxes on the piece in
question, you are concealing your claim to it.
There must be case law in Oregon showing what the effect of
who pays the taxes is on the case outcome.
As to what to do, one factor missing is what the effect of the
few feet is to each property. If it's doesn't make a drastic
difference in lot value, usability, access, etc to the OP, I'd
opt for getting the new fence where it belongs. It's probably
going to avoid a lot of legal fees, at the very least.

That makes absolutely no sense - maybe you should go back and read it again.
Think about it...
We're talking about "Parcel X" a strip of land 20' wide and 100' long,
for instance. Joe actually owns it per survey and deed. The taxes are
charged on a deeded parcel so who gets the tax bill? Joe! Jon's fence
mistakenly encroached upon the land of Joe, that same 20'x100' strip.
How in the hell is he going to get a bill from the county for that strip
if he doesn't own it? Until such time as there is a judicial
determination that it is or isn't Jon's land due to adverse possession,
the county is going to keep billing Joe and Joe will continue to pay it
- or not.

Doubt that it makes any difference at all in Oregon. It doesn't elsewhere.

Not to mention that it's the RIGHT thing to do. You don't own the land
it rightfully belongs to your neighbor. The only improvement made is
the fence which is being replaced, right? Just put it where it belongs
and consider it a "mulligan" and go forward.<g>

That's precisely the point, the the rightful owner *is* the one
paying the taxes on the land. And as I've said, I've seen statutes
for adverse possession that specifically require that the
AP be paying the taxes. If the AP believes that piece of property
that is his neighbor's is actually his, then why isn't he acting
like a legitmate property OWNER and paying the real estate taxes on it?
He knows property is taxed. He thinks he's getting this for free?
If no one is paying the taxes, that's one thing. But when the
rightful owner by title is paying the real estate taxes, I think
any court is going to take that into strong consideration versus
someone arguing that they are now the rightful owner because
a fence is off by 6 ft. Also, I've seen state statutes where
they specifically rule out de minimus claims of adverse possession
over a fence that is a few feet off, like this one.
Until such time as there is a judicial

e.

BS.
http://www.law.cornell.edu/wex/adverse_possession
"Definition from Nolo’s Plain-English Law Dictionary
A means by which one can legally take another's property without paying for
it. The requirements for adversely possessing property vary between states
, but usually include continuous and open use for a period of five or more
years and paying taxes on the property in question."

or it. The requirements for adversely possessing property vary between stat
es, but usually include continuous and open use for a period of five or mor
e years and paying taxes on the property in question."
YOu claim to have "seen statutes requiring it" Should be simple for you to
come up with a cite then.
I got title to an abandoned country school lot bordering my place by AP. Ho
w? Under Washington law AP takes 10 years except IF one pays the taxes on
it only 7years is needed. Lawyer looked up the law and came up with the so
lution dthat I pay the back taxes on it for the last 7 years. Done deal
Note that there is nothing in the AP law REQUIRING having to pay the taxes,
only that if one does it only takes 7 years.
Harry K

It was a special deal put together by a coalition of the adjacent landowner
(Last president of the school board), his lawyer and help from the county
tax office. The lot lay across a section line, half on my side, half on h
is. The title was a total mess as it had been donated by two different fami
lies way back when, heirs proliferated, etc, etc. Tax man wanted the title
claeard up, both me and the adjacent landowner wanted the same so that weed
infested patch and awkward corner for him could be eliminated. I was a ba
be in the woods and just did as they asked. Was it true back taxes? Dunno
but Washington law allows AP after only 7 years "if the claimant had paid
taxes". Takes 10 years without that proviso.
Harry K

If the OP is serious about getting an answer to his question, what he
should be doing is spending some time reading case law, and researching
the reasons why judges made the rulings they did in cases with similar
facts as his. Those will be the decisions that the judge in his case
(if it ever goes to court) will turn to for guidance in making his
decision.

Paying taxes is not part of openness. Onlookers don't know who pays
how much for what land for taxes. When you mail the money in, they
don't open your mail, and if you pay on the net, they haven't hacked
your computer (and shouldnt' be required to.)
Openness refers to what the neighbors can see and what the original
owner could see if he looked.

I got the impression that the second footnote on the page the OP
posted pointed to a list of all appealed cases related to the statute.
And this list seemed to match the list of "annotations" in the second
column on the OP's page.
Except for the fact that they don't have a date on either page, as
usual, and we can't tell how recently it was updated. Of course
pocket parts only come out once a year too. But there is also an
unsorted list of court decisions that comes out monthly or weekly.
Before preparing for trial and again before going to trial, a lawyer
should check cases on that list to see if any are relevant to his
case.

It is in my world. If you believe you own a piece of property,
you better be paying the taxes on it, or at least nobody better
be. You sit there for 10 years, let the neighbor pay the taxes
on a piece of property you claim to own, you don't pay, and that
is open? I'd say you're hiding what you're up to. If you were
legit, you'd be paying the taxes.
Onlookers don't know who pays

Onlookers aren't the issue.
When you mail the money in, they

Irrelevant

I'd say you're not open, that you are in fact a sneak, if
you knowingly allow someone else to pay property taxes on a
piece of land you own. Some states agree, because it part
of their AP laws. In order to claim adverse possession,
someone else, ie the rightful owner, can't be paying the
property taxes. The person making the AP claim has to be
paying them. Sounds very reasonable to me.

If I am listed as the owner, then I am getting the tax bill.
How would someone else be paying it?
If he's getting the tax bill, then it's already his in the
official records. If that's wrong, gonna be a heck of a struggle fixing it.

In the case in question the party seeking to possibly make
use of adverse possession is not listed as the owner. The
present owner of the property, who presumably has a title
and deed showing they own the property next door is listed as the
owner and has been paying the taxes. The fact that a fence is
in the wrong place doesn't change that.

Who exactly are you referring to? The fact that the person here trying
to claim adverse possession is *not* getting a tax bill and *not* paying the taxes is precisely the point. I'll say it one more time. In some states,
part of the AP law specifically includes that to make such a claim, the
person must be paying the property taxes on the property he seeks
via AP, just as if he owned the property.
That seems entirely reasonable to me. If you own your own lot, you
pay taxes on it. To claim that you own part of the neighbor next door's
lot when the neighbor has been paying taxes on it, not you, seems unreasonable
to me. And apparently to some states too. If you think you own it,
then why aren't you paying taxes on it?
Let's say there is a vacant house on a lot. The owner walks away
from it. A squatter occupies the house and starts paying the property taxes.
After the required number of years, he can claim it via AP. Not
saying all states work that way, but some do. And I'd be curious to
see the case law regarding the issue of tax payments and how courts
have treated it in other states.
Also, some states have de minimus exclusions, specifically covering
fences placed a few feet off the correct boundary, and similar
common occurances, where you can't claim AP.

How about a citation? Show us the statute in one of those states that
requires it (payment of taxes).
You gave an example of a common law "test" as it were. Common law may
be the foundation of our laws but they have evolved over time and
statutes and case law are all that matter when you get down to it.
Once again if you have adjacent property owners who share a common,
LEGAL boundary line between their two properties and for whatever reason
one neighbor places a fence that encroaches upon the others' property
the land so "taken" by the encroaching party IS subject to claim by
adverse possession and there's no way that that party is going to be
paying taxes on the land. Assume both are deeded as exactly .5 acres.
Each pays taxes on that .5 acres however the guy who put his fence 5'
over on the others' land should be (under your theory)paying on .5023
acres and the wronged party (the actual owner of the land)is paying on
.4077 acres. I guarantee you that they are not.
Granted the laws are different in different states. In IL taxes does
not enter into the equation other than to prove, perhaps, that the
rightful owner has not abandoned the property. A deed by adverse
possession may still be had if the non-owner maintains or uses the land
as his own.

Too lazy to go look? Is California a big enough example?
Here's a recent case in California, where actor Larry Hagman's estate
won an adverse possession case over a church, with one of the issues
being that the church had not paid taxes on the land in question.
Had they paid the taxes, the estate would have had no claim, because
payment negates any AP claim.
http://blogs.findlaw.com/california_case_law/2013/04/dont-fence-me-in-larry-hagman-and-adverse-possession.html
"A California Appellate Court clarified that it's easier to steal acquire land from a religious organization than from some other private entity.
That's because an adverse possessor snagging a religious organization's property doesn't have to meet the standard five-year tax requirement. "

I didn't give an example of a common law test. It told you that
some states have laws that require those trying to claim AP to have paid the
taxes on the property in question.

Again, that is precisely the point. If you're not paying the taxes,
then you're not going to take the other guy's property, who has been
paying taxes on it, by a fence that is 3 ft off from where it should be.
At least not in a state that requires paying taxes.
Assume both are deeded as exactly .5 acres.

I guarantee you that in most cases, they are not either. Which is
precisely the point. The guy who has the piece on the larger side
of the fence can't win a claim of AP because he hasn't paid the
taxes on it. That's in those states where paying the taxes is
required. And as I said, you'd have to look at case law in the
other states.
Also some states have de minimus provisions in AP law that
exclude claims over things like a fence that's a few feet off.

And if I were a judge, the "using the land as his own" test would
fail if the person trying to assert AP had not been the one paying
the taxes on the land. That's why I said you'd need to see the
actual laws and the case law for the situation involved.

Log in

HomeOwnersHub.com is a website for homeowners and building and maintenance pros. It is not affiliated with any of the manufacturers or service providers discussed here.
All logos and trade names are the property of their respective owners.